30 FLRA NO. 93
31 DEC 1987
Hardcopy Pages: 40
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 2052
Union
and
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
BOISE DISTRICT OFFICE
Agency
Case No. O-NG-1203
DECISION AND ORDER ON NEGOTIABILITY ISSUES 1
I. Statement of the Case
This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(D) and (E) of the Federal
Service Labor - Management Relations Statute (the Statute) and
concerns the negotiability of 20 proposals 2
For the reasons which follow, we dismiss the appeal as to
Proposal 1. We find Proposals 2 and 3, Proposals 4 in part,
Proposal 5, Proposal 12 in part, Proposals 13 and 15, and
Proposal 17 in part to be negotiable. We also find Proposal 4 in
part, Proposals 6, 7, 8, 9, 10 and 11, Proposal 12 in part,
Proposals 14 and 16, Proposal 17 in part, and Proposals 18, 19
and 20 to be nonnegotiable.
II. Proposal 1
Article V Section 5
Professionalism: The Employer shall not coerce or in any
manner require employees to violate federal laws or regulations,
or compromise their professional standards. No employee shall be
coerced or in any manner be required to endorse any proposal or
data the employee believes to be erroneous or misleading.
A. Positions of the Parties
In its Petition for Review, the Union asserts that the
intent of the proposal is to protect employees from being forced
to endorse false or inaccurate proposals or data, which
endorsements will harm employees' professionalism or credibility.
The Union contends, however, that its proposal is not intended to
permit employees to publicly dissent from the Agency's policies
or decisions.
The Agency asserts that the overall effect of the proposal
would be to delegate to employees the right to establish the
quality, quantity and timeliness of their own performance as well
as to establish their own standards of conduct. The Agency argues
that the proposal violates its rights under: 1) section
7106(a)(1) of the Statute to determine the mission of the Agency;
2) section 7106(a)(2)(A) to direct employees; 3) section
7106(a)(2) (B) to assign work; and 4) section 7106(b)(1) to
determine the technology, methods and means of performing its
work.
The Agency notes that many of its professional employees are
involved in preparing environmental assessments or impact
statements pursuant to the National Environment Policy Act and
implementing regulations. In the Agency's view, insofar as the
proposal would give employees the option of choosing not to be
associated with environmental assessments or impact statements on
which they had worked, the proposal would violate Government-wide
regulations which require that environmental impact statements
list the names and professional qualifications of the employees
who were involved in preparing the document.
B. Analysis and Conclusion
The first sentence of the proposal would prevent management
from assigning an employee to a task which would require the
employee to violate Federal laws or regulations or which would
compromise the employee's professional standards. The second
sentence of the proposal would give individual employees the
option of determining whether or not they wanted to be identified
with any proposal or data the employee "believes to be
misleading."
As previously mentioned, the Union did not file a Reply
Brief. Thus, it is unclear what management directed actions would
be considered to be coercive or would compromise an employee's
professional standards. Further, it is also unclear how
management is expected to act or refrain from acting under this
proposal.
For example, the Agency claims that the Union intends the
proposal to permit employees to choose to not sign environmental
impact statements on which they had worked. Since 40 C.F.R.
1502.17 requires, among other things, a list of the individuals
who were responsible for preparing environmental impact
statements, a proposal to permit employees the option not to be
listed would be inconsistent with this Government-wide
regulation.
Similarly, in Overseas Education Association and Department
of Defense Dependents Schools, 29 FLRA 485 (1987) (Proposal 20
and 22), petition for review filed on other grounds sub non.
Department of Defense Dependents Schools v. FLRA, No. 87-1734
(D.C. Cir. Nov. 30, 1987), we considered two proposals which
would have allowed teachers to disassociate themselves from a
student's education plan which they had participated in
preparing. We found that the proposals were not within the duty
to bargain under section 7106(b)(1) of the Statute because the
Agency's decision that all interested parties had a right to know
who had participated in developing such a plan constituted a
"method and means" of performing the Agency's work.
On the other hand, the Authority consistently has held that
general provisions requiring management to exercise its rights
under section 7106 in compliance with law are within the duty to
bargain. See National Federation of Federal Employees, Local 1497
and Department of the Air Force, Lowry Air Force Base, Colorado,
9 FLRA 151 (1982) (Proposal 2).
In our view, the purpose and effect of this proposal are not
clear enough to permit a determination as to whether it is
consistent with applicable laws and regulations. Likewise, the
purpose and effect of the proposal are not clear enough to permit
us to assess its impact on the management rights with which the
Agency claims it interferes. Therefore, this proposal must be
dismissed as not being sufficiently specific and delimited to
provide a basis upon which to determine its negotiability. See
American Federation of Government Employees, AFL - CIO, National
Council of VA Locals and Veterans Administration, 29 FLRA 515
(1987) (last sentence of Proposal 3), petition for review filed
on other grounds sub nom. Veterans Administration v. FLRA, No.
87-1727 (D.C. Cir. Nov. 27, 1987); American Federation of
Government Employees, AFL - CIO, Local 1858 and Department of the
Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10
FLRA 440 (1982) (Proposal 5).
III. Proposal 2
Article IX - Arbitration
Section 5d. The arbitration hearing or inquiry shall be held
on the Employer's premises during the regular day shift work
hours of the basic work week. An employee of the unit serving as
the grievant's representative, the aggrieved employee, and
employee witnesses who are otherwise on duty shall be excused
from duty as necessary to participate in and prepare for the
arbitration proceedings without loss of pay, annual leave, or any
other benefit. Employee participants on shifts other than the
regular day shift will be temporarily placed on the Regular day
shift for the week(s) of the hearing in which they are involved.
(Only the underscored portion of the proposal is in dispute.)
A. Positions of the Parties
The intent of the Union's proposal is that involved
employees--the grievant, the grievant's representative, and/or
witnesses--should be made available at arbitration proceedings
without incurring loss of pay, annual leave, or other adverse
effects.
The Agency contends that only the last sentence of the
proposal is in dispute. While the Agency does not currently,
have more than one shift, it is concerned that the
proposal would interfere with its right to assign an employee
should it establish another shift.
B. Analyses and Conclusions
For the reasons set forth in our separate opinions, which
immediately follow this decision, we find Proposal 2 to be
negotiable.
IV. Proposal 3
Article 11 - Use of Official Facilities and Services
Section 6. In addition, the employer agrees to furnish the
union with a copy of each Standard Form 50 personnel action, or
its equivalent, to enable the union to learn of new hires,
changes in the status of employees and resignation or retirement
of employees.
A. Positions of the Parties
The Union states that the intent of this proposal is to
obtain information it deems necessary to enable it to properly
serve the members of the bargaining unit.
The Agency contends that the proposal is not negotiable
because an SF 50 contains such information as an employee's
birthdate and Social Security number. It asserts that the
disclosure of such information to the Union is precluded by the
provisions of the Privacy Act. While the Agency does not cite any
provisions of the Privacy Act in support of its contention, it
relies on the Authority's decision in Farmers Home Administration
Finance Office, St. Louis, Missouri, 19 FLRA 195 (1985), finding
that the disclosure of employees' names and home addresses was an
invasion of privacy.
B. Analysis and Conclusion
Section 7114(b)(4) of the Statute requires an agency to
furnish to an exclusive representative, upon request and to the
extent not prohibited by law, data which is (1) normally
maintained by the agency in the regular course of business; and
(2) reasonably available and necessary for full and proper
discussion, understanding, and negotiation of subjects within the
scope of collective bargaining.
Here, the Union is seeking the SF 50s as a mechanism to
monitor personnel actions affecting bargaining unit employees.
The Agency made no claim that the information sought is not
normally maintained by the Agency or is not necessary for the
Union to carry out its representational functions. Rather, the
Agency's sole claim is that the proposal violates the Privacy Act
because it would require the disclosure of certain personal
information. Contrary to the Agency's claim, however, we find
nothing in the language of this proposal or in the record which
indicates that the Agency would be precluded from sanitizing the
SF 50 before it was submitted to the Union so as to eliminate any
personal information not necessary to the general purposes for
which the SF 50 is sought.
Moreover, the Agency reliance on Farmers Home Administration
Finance Office, 19 FLRA 195 (1985), to support its claim that
the proposal violates the Privacy Act because it requires the
release of personal information such as an employee's home
addresses, is misplaced. In the Decision and Order on Remand in
Farmers Home Administration Finance Office, St. Louis, Missouri,
23 FLRA 788 (1986), petition for review filed sub nom. United
States Department of Agriculture and the Farmers Home
Administration Finance Office, St. Louis, Missouri v. FLRA, No.
86-2579 (8th Cir. December 12, 1986), the Authority subsequently
reversed its position. The Authority concluded that the release
of names and home addresses of unit employees to their exclusive
representative is not prohibited by the Privacy Act, is necessary
for the Union to fulfill its duties under the Statute, and meets
the requirements for disclosure under section 7114(b)(4) of the
Statute. In a subsequent negotiability determination, the
Authority further concluded, based on the Decision and Order on
Remand in Farmers Home Administration Finance Office, 23 FLRA
788, that a proposal seeking the names and home addresses of
individuals in the bargaining unit who were also members of the
exclusive representative was negotiable. National Federation of
Federal Employees, Local 1655 and Adjutant General of Illinois,
24 FLRA 3 (1986). See also United States Department of Health
and Human Services, Social Security Administration v. FLRA, Nos.
87-3513(L), 87-3514, 87-3515 (4th Cir. Nov. 25, 1987), affirming
Department of Health and Human Services, Social Security
Administration, 24 FLRA 543 (1986); Department of Health and
Human Services, Social Security Administration and Social
Security Administration Field Operations New York, 24 FLRA 583
(1986); Department of Health and Human Services, Social Security
Administration, 24 FLRA 600 (1986).
In conclusion, we find that the Agency has not sustained its
claim that Proposal 3 violates the Privacy Act. Thus, we hold
that Proposal 3 is negotiable.
V. Proposal 4
Article XIII - Safety and Health
Section 2. Safety Committee - The Union and Management shall
have a designated representative on the Safety Committee and any
subcommittees thereof. The Safety and Health Committee shall
perform the following functions:
(a). Make a study of any environmental conditions appearing
not in consonance with the OSHA or considered to be potentially
harmful or injurious to the health, safety or comfort of the
employees, including but not limited to unsanitary toilet
facilities; excessive heat, fumes, noise, or toxic materials; and
unsafe equipment or practices. When such studies reveal that
harmful environmental or unsafe conditions exist, the committee
shall immediately notify the District Manager, specifying the
action needed to correct the condition.
(b). Participate in the investigation of major accidents in
order to determine the cause thereof and determine policies for
future prevention. The Union representative shall be a member of
any investigation teams. All of the following shall be considered
major accidents: 1) injury accident involving hospital treatment,
2) property damage in excess of $500, or 3) any accident with the
potential to result in adverse action against a BLM employee or
in a tort action claim.
(c). Investigate, report and direct corrective action for
unsafe working conditions referred to the committee for action.
(d). Meet at regularly scheduled intervals and compile a
written report of each meeting, describing the
committee's and fellow workers' contributions to safety.
(e). In all its activities, the members of the Committee
shall have access to agency information relevant to their duties,
including information on the nature and degree of hazard of
substances in agency workplaces.
(f). If the Union is not substantially satisfied with the
agency's response to a report of hazardous working conditions,
the Union and the District shall jointly request an evaluation
and/or inspection from the Occupational Safety and Health
Administration.
(g). The members of the committee will receive training in
their duties, including inspection procedures and techniques, as
provided by Section 7 of this Article.
(h). The Individual designated by the Union to serve on the
Safety Committee formed under this article will be appointed by
management to serve on the Field Federal Safety and Health
Council for this geographic area in accordance with 29 CFR
1960.54. While attending Council meetings or participating in
Council activities, the Union representative will be on official
time and will receive all proper travel and per diem expenses.
A. Positions of the Parties
The Union argued that Proposal 4 has a direct effect on
working conditions and, therefore, is negotiable.
The Agency asserts that Proposal 4 would give the Union a
substantive role on the Safety Committee. The Agency cite the
Authority's decision in Department of the Navy, Northern
Division, Naval Facilities Engineering Command, 19 FLRA 705
(1985), rev'd and remanded sub nom. National Federation of
Federal Employees, 1430 v. FLRA, No. 85-1648 (D.C. Cir. Nov. 6,
1987), as supporting its position that Union participation on
such a committee is not negotiable where the committee
functions as part of the decision-making process whereby
management exercises its rights under section 7106(a)(2)(A) and
(B) of the Statute.
The Agency further asserts that insofar as the proposal
requires that management appoint the Union representative on the
Safety Committee to the Field Federal Safety and Health Council
for its geographic area that the proposal conflicts with its
right to determine whom to assign to that responsiblity. In
support, the Agency relies on National Association of Government
Employees Local R14-87 and Department of the Army and the Air
Force, Kansas Army National Guard, 19 FLRA 381 (1985).
B. Analysis and Conclusions
The Agency does not argue, and it does not appear from the
record, that the committee is intended to be certified by the
Secretary of Labor under Executive Order (E.O.) 12196. A
certified committee enables the Agency, among other things, to
avoid unannounced inspections by the Occupational Safety and
Health Administration. The establishment of a "certified" safety
and health committee was found to be nonnegotiable in National
Treasury Employees Union and Department of the Treasury, 21 FLRA
652 (1986). Thus, the law and regulations applicable to the
discussion of "certified" committees is not pertinent here.
Proposals establishing joint labor-management "uncertified"
safety and health committees to provide a forum for the
expression of concerns over safety and health matters have been
found to be negotiable. See, for example, National Federation of
Federal Employees, Local 2059 and U.S. Department of Justice U.S.
Attorney's Office Southern District of New York New York New
York, 22 FLRA 136 (1986) (Provision 1). On the other hand,
proposals which would enable a union to interject itself into the
deliberative process by which management exercises its rights,
including those related to health and safety matters, have been
found to be nonnegotiable. Hawaii Federal Employees Metal Trades
Council, AFL - CIO and Pearl Harbor Naval Shipyard, 23 FLRA 189
(1986); American Federation of Government Employees, AFL - CIO
Local 2786 and Defense Mapping Agency, 20 FLRA 193 (1985)
(Provision 3).
In our view, therefore, uncertified health and safety,
committees which enable parties to jointly seek out, identify,
investigate, report on, discuss, and seek solutions to
health and safety concerns which have an impact on employees
represented by the Union are within the duty to bargain insofar
as they do not interfere with other protected management rights
under section 7106 of the Statute. Except for the portions of
this proposal which we find to violate management's rights, this
proposal establishes an uncertified health and safety committee
and sets forth its responsibilities. Thus, like the proposal in
Southern District of New York, this proposal is negotiable.
However, the following portions of the proposal, which would
enable the Union to interject itself into the deliberative
process by which management exercises its reserved rights under
the Statute, are nonnegotiable for the reasons set out below.
The last sentence of section (a) of the proposal provides
that not only will the committee notify the District Manager of
any harmful environmental or unsafe conditions which its studies
reveal but that the committee's notice to the District Manager
will specify "the action needed to correct the action." Further,
part of section (c) of the proposal would give the health and
safety committee the authority to "direct corrective action"
concerning unsafe working conditions referred to it. By so doing,
these portions of the proposal interfere with management's
prerogative to determine who shall determine what is the
appropriate corrective action for unsafe or unhealthy working
conditions. Thus, these portions of the proposal concern the
assignment of work within the meaning of section 7106(a)(2)(B) of
the Statute and are outside the duty to bargain. See Pearl Harbor
Naval Shipyard; Defense Mapping Agency.
Finally, section (g) of the proposal mandates that the
members of the committee will receive training in their duties.
It is well established, under Authority precedent, that proposals
requiring management to provide formal training, or periodically
to assign employees to specific types of training are outside the
duty to bargain as they involve assignments of work under section
7106(a)(2)(B) of the Statute. National Federation of Federal
Employees, Local 422 and Department of Interior, interior. Bureau
of Indian Affairs, Colorado River Agency, Parker, Arizona, 14
FLRA 48 (1984). Because section (g) of the proposal would
mandate specific training requirements for the committee members,
it is likewise inconsistent with section 7106(a)(2)(B).
In summary, Proposal 4 is negotiable except for the last
sentence of section (a), the phrase "direct corrective action" in
section (c), and all of section (g).
VI. Proposal 5
Article XIII - Safety and Health
Section 3. Safety Inspections - There shall be a quarterly
inspection of all areas occupied by the employees and a union
representative shall have the right to participate in the
inspection on official time. The Employer and the Union shall
jointly seek, at least annually, an inspection of the activity's
facilities by the Office of Federal Agency Programs, OSHA, DOL.
When safety inspections are made pursuant to OSHA or other
statutes or regulations in areas where unit employees work, the
Union will be notified and a Union representative may accompany
the inspector or inspection team. The Employer agrees to provide
the Union with a copy of all reports of safety inspections and
reports of accidents and of occupational illness.
A. Positions of the Parties
The Union's position is set forth at Proposal 4.
The Agency asserts that this proposal would give the Union
the right to be present at any safety inspection involving the
Agency's facilities. The Agency argues that proposal is intended
to give the Union the right to accompany safety inspectors from
an organizational level higher than the Boise Office. The Agency
claims that the local manager has no authority to agree to a
provision which affects how safety inspections by higher level
personnel are conducted. Thus, the proposal is outside the duty
to bargain. In support, the Agency cites regulations giving
safety inspectors the authority to deny the right of
accompaniment to any person whose participation interferes with a
fair and orderly inspection.
The Agency further asserts that the proposal is outside the
duty to bargain insofar as it requires quarterly safety
inspections, because such a requirement would interfere with the
Agency's right to assign work. The Agency reads the
proposal for an annual inspection as requiring it to replace an
internal inspection with an OSHA inspection.
B. Analysis and Conclusion
This proposal provides for joint quarterly safety
inspections of the Agency's facilities by the parties, for annual
joint requests for an inspection by the Office of Federal Agency
Programs, for the right of the Union to accompany any outside
inspector pursuing a health or safety inspection, and for the
Agency to provide the Union with copies of all reports of safety
inspections, reports of accidents and reports of occupational
illness. In all these elements, the proposal provides for the
joint consideration of health and safety matters which we found
to be negotiable in Proposal 4. As these activities do not enable
the Union to interject itself into the decision making process
through which the Agency exercises its reserved rights under the
Statute, we conclude that the proposal is within the duty to
bargain.
Considering the Agency's objections, we find that the
proposal does not limit the Agency's right to assign
investigative work to either its own employees or to others,
including officials from outside the Agency. Further, the Agency
cites no law, rule, or regulation which would preclude the
parties from agreeing to a stated number of joint safety
inspections. Further, the Agency has not established how Union
accompaniment of outside safety inspectors would interfere with a
fair and orderly inspection. Finally, there is nothing on the
face of the proposal which requires the Agency to replace its
annual internal inspection with an OSHA inspection. If the Agency
were to agree to the proposal, it would maintain the prerogative
of conducting an internal inspection in addition to the OSHA
inspection required by the proposal. Consequently, we find
Proposal 5 to be negotiable.
VII. Proposal 6
Article XIII - Safety and Health
Section 4(c). Employees shall not be required to work alone
in remote environments where assistance via radio call is more
than one hour away.
Section 4(d). Employer shall maintain building temperatures
between 65 and 70 degrees F. Unit members shall be
granted paid administrative leave when building temperatures are
less than 65 degrees F. or more than 70 degrees F.
A. Positions of the Parties
The Union's position is stated at Proposal 4.
The Agency, citing the Authority's decision in National
Federation of Federal Employees, Local 1167 and Department of the
Air Force, Headquarters, 31st Combat Support Group (TAC)
Homestead Air Force Base, Florida, 6 FLRA 574 (1981), aff'd
National Federation of Federal Employees, Local 1167 v. FLRA,
681 F.2 886 (D.C. Cir. 1982), argues that precluding management
from assigning one employee to certain work situations conflicts
with management's right under section 7106(b)(1) to determine the
numbers of employees assigned to any work project or tour of
duty. The Agency also contends that the proposal would interfere
with its rights under 7106(a)(2)(A) and (B) to assign employees
and to assign work.
The Agency asserts that part (d) of the proposal, concerning
building temperatures, is not negotiable because it conflicts
with Government-wide regulations issued by the General Services
Administration which establish specific temperature ranges. The
Agency additionally claims that the portion of the proposal
requiring that employees be placed on administrative leave under
certain adverse temperature conditions conflicts with a policy
established by FPM Letter 610-6, which requires that temperature
related dismissals rarely should be required.
B. Analysis and Conclusion
Contrary to the Agency's position, we find nothing in the
record which indicates that Part (c) is intended to prevent
management from exercising its rights under section 7106(a)(2)(A)
and (B) to assign employees to positions in the Agency or to
assign work to employees. Rather, Part (c) concerns the number of
employees who will be required to perform their regularly
assigned duties in a particular location. Thus, we find that the
Agency has not established that Part (c) of the proposal violates
section 7106(a)(2)(A) or (B) of the Statute.
Nevertheless, we find this proposal to be nonnegotiable. In
National Union of Hospital and Health Care Employees, AFL - CIO,
District 1199 and Veterans Administration Medical
Center, Dayton, Ohio, 28 FLRA 435 (1987), petition for review
filed sub nom. Veterans Administration Medical Center, Dayton,
Ohio v. FLRA, No. 87-1521 (D.C. Cir. Sept. 28, 1987), we found
nonnegotiable Proposal 19 which precluded the normal assignment
of a single employee to a work unit. Citing Homestead Air Force
Base, we concluded that such a proposal constituted an
interference with management's right under section 7106(b)(1) of
the Statute to determine the number of employees assigned to any
work project or tour of duty so long as management chose not to
negotiate. For the same reasons, we find that part (c) of this
proposal, which would place conditions on management's right to
require an employee to work alone, also concerns matters which
are negotiable only at the Agency's election under section
7106(b)(1). Since the Agency has elected not to negotiate part
(c), it is not within the duty to bargain.
With regard to part (d) of the proposal, concerning building
temperatures, the Agency cites a GSA regulation, 41 C.F.R.
101-20.116-3, requiring the maintenance of temperatures between
78 to 80 degrees F. during working hours during the seasonably
hot months and the maintenance of temperatures between 65 to 68
degrees F. during the seasonably cold months. The Union's
proposal clearly exceeds these guidelines. In the absence of any
further Union explanation of the proposal, we conclude that the
first sentence of part (d) of this proposal is nonnegotiable as
it conflicts with a Government-wide regulation. Compare American
Federation of Government Employees, AFL - CIO, Local 644 and
Department of Labor, Mine Safety and Health Administration, 27
FLRA 375 (1987), where we concluded that Proposal 7 requiring
that suitable air conditioning and/or heat be provided in all
working areas was negotiable as the Union specifically asserted
that the proposal was not intended to effect any variation from
the pertinent GSA regulations cited above.
Agencies have discretion to grant administrative leave due
to unusual working conditions created by temporary disruptions of
cooling or heating systems. FPM Letter 610-6, June 30, 1981.
However, the FPM letter indicates that such dismissals are not
intended to be authorized where abnormal temperatures involve
minor discomforts. Rather, such dismissals are authorized only
where temperatures are extreme and actually prevent employees
from working. The second sentence of part (d) however, contains
no reference to the ability of employees to work even when
temperatures are not normal. Rather, under this sentence, if the
conditions set out in the sentence are met, management
would be required to release employees from work without charge
to leave and without loss of pay. Since it is well established
that proposals which seek to place conditions on management's
ability to assign particular duties are inconsistent with
management's right under section 7106(a)(2)(B) to assign work,
the second sentence is also nonnegotiable. See American
Federation of Government Employees, AFL - CIO, Local 1770 and
Department of the Army, Fort Bragg Dependent Schools, Fort Bragg,
North Carolina, 28 FLRA 493 (1987) (Provision 11), petition for
review filed on other grounds sub nom. Department of the Army,
Fort Bragg Dependent Schools, Fort Bragg, North Carolina v. FLRA,
No. 87-2661 (4th Cir. Sept. 22, 1987), (Section 3 of Provision 11
required that teachers be excused when temperature conditions
reached the point where students were dismissed. We concluded
that section 3, which sought to limit the assignment of duties to
bargaining unit employees, was inconsistent with management's
right to assign work under section 7106(a)(2)(B)). We find that
the second of part (d) of Proposal 6 similarly would interfere
with management's right to assign work and that it is, therefore,
outside the duty to bargain.
VIII. Positions of the Parties
Article XIII - Safety and Health
Section 4(e). The Employer agrees to ensure to the extent
possible, adequate lighting and ventilation in work areas and
shall not require employees to work in overly crowded, dark, or
inadequately ventilated areas. Regarding the adequacy of light,
ventilation and space in any work area, corrective action will be
taken by the Employer based on information and standards supplied
by the Union through the Safety and Health Committee.
A. Positions of the Parties
The Union's position is stated at Proposal 4.
The Agency, citing the Authority's decision in Homestead Air
Force Base, 6 FLRA 574, asserts that the proposal is
nonnegotiable because it interferes with management's right to
assign work pursuant to section 7106(a)(2)(B) of the Statute. In
Homestead the Authority rejected a proposal that would have
precluded the assignment of work to employees unless
they were "completely sheltered." The Agency claims that this
proposal would similarly limit its right to assign work based on
meeting an environmental precondition.
The Agency asserts that the second sentence of the proposal
is nonnegotiable because it imposes a mandatory requirement that
corrective action shall be taken by management based on
information and standards supplied by the Union through the
vehicle of the Safety Committee. The Agency also raises the same
objections to any substantive role being taken by the Safety
Committee that it raised at Proposal 4.
B. Analysis and Conclusion
Proposals which seek to ensure adequate lighting and
ventilation in work areas for unit employees are negotiable as
they clearly involve conditions of employment. See Mine Safety
and Health Administration, 27 FLRA 375 (1987) (Proposal 7).
However, this proposal is not limited to seeking adequate light
and ventilation. Rather, this proposal would prevent management
from assigning any duties to employees unless the conditions in
the proposal were met.Thus, the proposal directly interferes with
management's right to assign work under section 7106(a)(2)(B) of
the Statute. See American Federation of Government Employees, AFL
- CIO, Local 1458 and U.S. Department of Justice, Office of the
U.S. Attorney Southern District Florida, 29 FLRA 3 (1987)
(Provision 1). Further, the last sentence of the proposal places
a substantive responsibility on the Agency, to work through the
Safety and Health Committee and implement any proposals emanating
therefrom. As we indicated at our discussion of Proposal 4
concerning the role of the Safety and Health Committee, the
second sentence of this proposal interferes with management's
prerogatives concerning the methods and means by which it will
perform its work and it is, therefore, outside the duty to
bargain.
IX. Proposal 8
Article XIII - Safety and Health
Section 4(g). Only authorized employees who are qualified or
in training will be permitted or required to operate machinery or
equipment or to perform work that could cause injury to an
inexperienced operator or endanger other employees.
A. Positions of the Parties
The Union's position is stated at Proposal 4.
The Agency contends that by precluding it from determining
which position or employee will be assigned certain duties, the
proposal interferes with the right to assign work under section
7106(a)(2)(B). In support, the Agency relies on International
Brotherhood of Electrical Workers, Local 570, AFL-CIO-CLC and
Department of the Army, Yuma Proving Ground, Arizona, 14 FLRA
432 (1984). The Agency further contends that the proposal
restricts its right to assign work by imposing an obligation to
assign work only to qualified personnel.
B. Analysis and Conclusion
In American Federation of Government Employees, AFL - CIO,
Local 1858 and U.S. Army Missile Command, The U.S. Army Test,
Measurement, and Diagnostic Equipment Support Group, The U.S.
Army Information Systems Command - Redstone Arsenal Commissary,
27 FLRA 69 (1987), petition for review filed on other grounds
sub nom. U.S. Missile Command U.S. Army Test, Measurement and
Diagnostic Equipment Support Group, U.S. Army Information Systems
Command, Redstone Arsenal v. FLRA, No. 87-7445 (11th Cir. July
17, 1987), we held that Provision 11, limiting repair work on
moving operating machines to qualified maintenance personnel,
conflicted with management's right to assign work by placing
conditions on that right. Based on the rationale and precedent
set forth in that case, we conclude that Proposal 8, which
similarly would limit the Agency's right to assign work, is
nonnegotiable.
X. Proposal 9
ARTICLE XII - Safety and Health
Section 4(i). No employee shall be required to perform any
work where conditions exist that are unsafe or detrimental to
health. Further, no employee who is, by the nature of the job,
required to work in an area identified as a potentially hazardous
area or as a poor environmental area shall be required to work
alone or without a co-worker at the access to a potentially
hazardous confined area.
A. Positions of the Parties
The Union's position is stated at Proposal 4.
The Agency asserts that the first sentence of the proposal
imposes a precondition on its right to assign work to employees
and is therefore outside the duty to bargain. The Agency also
argues that the second sentence of the proposal prohibits
solitary assignments and is nonnegotiable for the same reasons
set out at Proposal 6.
B. Analysis and Conclusion
The Agency interprets the first sentence of the proposal as
preventing it from assigning work to employees under certain
conditions. In the absence of any Union response, we accept that
interpretation of the meaning of the first sentence of the
proposal. In American Federation of Government Employees, Local
2094, AFL - CIO and Veterans Administration Medical Center, New
York New York, 22 FLRA 710 (1986) (Proposal 4) petition for
review filed on other grounds sub nom. American Federation of
Government Employees, Local 2094 v. FLRA, No. 86-15 1 (D.C. Cir.
Sept. 22, 1986), the Authority found that Proposal 4, which
prevented the agency from assigning overtime work to employees if
the employees felt that it would endanger their health, was a
direct infringement on the agency's right to assign work under
section 7106(a)(2)(B) of the Statute. Since Proposal 9 likewise
would prevent the Agency from assigning work to employees in the
circumstances stated in the proposal, we find, for the reasons
stated in VA Medical Center, New York, that it directly
interferes with the right to assign work.
The second sentence of this proposal is to the same effect
as Section 4(c) of Proposal 6 which we found nonnegotiable.
Section 4(c) of Proposal 6 precluded the the Agency from
assigning employees to work alone in remote areas unless certain
conditions were met. We found that section 4(c) interfered with
management's right under section 7106(b)(1) to determine the
numbers of employees assigned to any work project or tour of
duty. Thus, for the reasons stated in our analysis of Proposal 6,
we conclude that the second sentence of this proposal also
interferes with management's right under section 7106(b)(1) to
determine the number of employees assigned to any work project or
tour of duty.
XI. Proposal 10
Article XIII - Safety and Health
Section(j). When an employee feels that he or she is subject
to conditions so hazardous that even a short-term exposure to
such conditions would be detrimental to health or safety, he or
she should report the circumstances to the immediate supervisor
and the union steward. The supervisor and the steward shall
inspect the work area to ensure that it is safe before requiring
the employee to carry out the work assignment. If any doubt
regarding the safety of existing conditions is raised by either
the supervisor or the steward, a determination shall be received
by the Safety Committee. The supervisor shall grant the employee
immediate relief from any unsafe or unhealthy circumstances,
pending permanent resolution of the problem. When such immediate
relief is not deemed necessary or possible, the supervisor shall
give the rationale for the decision to the union and to the
employee(s) over his/her signature. The union or an employee or
group of employees who believes that work is being required under
conditions which are unsafe or unhealthy beyond the normal
hazards inherent in the operations in question may request a
hearing before the Labor - Management Committee and have the
right to file a grievance. When short-term exposure requires
immediate solution and it is not possible to obtain employer
concurrence beforehand, then the employee may at his/her
discretion terminate his/her on-duty action and so notify the
employer, requesting temporary assignment to other duties.
A. Positions of the Parties
The Agency characterizes this as a "mutual consent" proposal
which gives an employee the unilateral right to elect whether or
not to work or continue to work in the presence of certain
hazardous conditions whose presence is determined by the
employee. The Agency asserts that the proposal is inconsistent
with management's right pursuant to section 7106(a)(2) to assign
work and to assign and direct employees.
The Agency also contends that the proposal goes beyond the
limits established by OSHA regulations at 29 C.F.R. 1960.46 which
establish an employee's right to refuse a work assignment when
there is a reasonable belief of imminent risk of death or serious
bodily harm coupled with a reasonable belief that there is
insufficient time to seek effective redress. By exceeding these
OSHA standards, the proposal, in the Agency's view, further
restricts its right to assign work.
The Agency further asserts that the proposal is outside the
duty to bargain insofar as it designates the employee's immediate
supervisor and the union steward as the employees responsible for
investigating any alleged hazard and taking the first steps in
responding to any alleged hazard, including the responsibility to
determine whether or not to relieve an employee of an assignment
involving an alleged hazard. The Agency finds this portion of the
proposal to be nonnegotiable because it interferes with
management's right pursuant to section 7106(a)(2)(B) to determine
which employees shall perform any particular function, citing
American Federation of State, County, and Municipal Employees,
AFL - CIO Local 2910 and Library of Congress, 11 FLRA 632
(1983).
The Agency also asserts that the proposal is nonnegotiable
insofar as it assigns responsibilities to the Safety Committee,
thereby abrogating management's right to determine the manner in
which such safety issues will be handled.
B. Analysis and Conclusion
This proposal is to the same effect as Provision 1 found
nonnegotiable in Office of the U.S. Attorney, Southern District
of Florida, 29 FLRA 3 (1987). Provision 1 in that case would
have given an employee the right to decline to perform an
assigned duty "if the employee has a reasonable belief that the
duty poses an immediate risk to the employee's health or safety."
We determined that the provision contained a less rigorous
standard than the standard incorporated in 29 C.F.R. 1960.46(a).
According to that requirement, an employee is permitted to
decline to carry out a task when the employee has a reasonable
belief that "the task poses an imminent risk of death or serious
bodily harm coupled with a reasonable belief that there is
insufficient time to seek effective redress through normal hazard reporting and abatement procedures established in
accordance with this part."
We concluded that since the provision was inconsistent with
this Government-wide regulation the provision was nonnegotiable.
In addition, we further concluded in Southern District of Florida
that Provision 1 interfered with management's right to assign
work within the meaning of section 7106(a)(2)(B) of the
Statute.
Proposal 10 likewise would establish a standard which is
inconsistent with the provisions of 29 C.F.R. 1960.46(a). It
would prevent the Agency from assigning work to employees in the
circumstances stated in the proposal. Thus, we find, for the
reasons stated in Southern District of Florida, that this
proposal is outside the duty to bargain because it is
inconsistent with a Government-wide regulation and because it
directly interferes with the right under section 7106(a)(2)(B) to
assign work.
XII. Proposal 11
Article XIII - Safety and Health
Section 4(k). The Employer shall promptly abate all safety
and health hazards that are reported by employees or found during
inspections. Whenever such conditions cannot be promptly abated,
the Employer shall notify the Union and the parties shall meet to
negotiate a timetable for abatement, including a schedule of
specific interim steps to protect employees. This agreement shall
be reproduced and distributed to all employees affected by
hazardous condition(s).
A. Positions of the Parties
The Union's position is stated at Proposal 4.
The Agency asserts that this proposal, like Proposal 10,
improperly delegates to employees the determination of a safety
or health hazard which must be corrected.
The Agency further asserts that the proposal improperly,
mandates the abatement of every and all safety and/or health
hazard reported by employees. In the Agency's view, this
requirement restricts its right to determine which hazards must
be dealt with and the timing of such a change. The
Agency also contends that, taken literally, the proposal requires
the immediate abatement of all reported hazards. According to the
Agency, the potential cost of abating all reported hazards would
be of such a magnitude as to interfere with the Agency's right to
determine "the means and manner in which agency operations will
be conducted," specifically its rights under section 7106(a)(1)
of the Statute to determine its mission and budget.
B. Analysis and Conclusion
This proposal requires the Agency to abate all safety and
health hazards reported by employees or found during safety
inspections. Further, if the hazard cannot be promptly abated,
the proposal requires the Agency to negotiate a timetable for
abatement and to distribute the "agreement," that is, the
negotiated timetable, to all affected employees.
We find this proposal to be nonnegotiable, but not for the
reasons relied upon by the Agency. The Basic Program Elements for
Federal Employee Occupational Safety and Health Programs are set
forth in Part 1960 of Chapter 29 of the Code of Federal
Regulations. Agencies are obligated to establish and maintain
effective and comprehensive safety and health programs and to
provide appropriate financial resources to abate unsafe or
unhealthful working conditions. See 29 C.F.R. 1960.1, 1960.7.
This part further establishes specific procedures for the
inspection and abatement of safety and health hazards. For
example, under 29 C.F.R. 1960.28(c) an employee or a
representative of employees, who believes that an unsafe or
unhealthful working condition exists in any workplace where such
employee is employed, has the right and is encouraged to make a
report of the unsafe or unhealthful working condition to an
appropriate agency health and safety official and to request an
inspection of the workplace for this purpose. This regulation
further provides that employees are to be notified as to the
action taken on their reports.
However, while this regulation also requires that unsafe or
unhealthful working conditions must be abated, such action is
contingent upon a determination by the appropriate agency
official or inspector that such a condition does, in fact, exist.
See generally 29 C.F.R. 1960.28, 1960.30.
Proposal 11, on the other hand, expressly requires that all
safety and health hazards reported by employees will be
abated either immediately or pursuant to a negotiated timetable.
There is nothing in the language of this proposal or in the
record in this case which indicates that a determination must be
made that a safety or health hazard does, in fact, exist.
Thus, by requiring the Agency to take action solely on the
report of an employee, the requirement set out in the first two
sentences to abate or to negotiate a timetable for abatement is
inconsistent with 29 C.F.R. Part 1960. Since this regulation is a
Government-wide regulation within the meaning of section
7117(a)(1) of the Statute, the first two sentences are
nonnegotiable. See National Treasury Employees Union, Chapter 6
and Internal Revenue Service, New Orleans District, 3 FLRA 748
(1980). Further, since there is no obligation to negotiate a
timetable for abatement, the requirement set out in the last
sentence that such agreement be distributed to affected employees
also is nonnegotiable.
XIII. Proposal 12
Article XVII - Position Descriptions
Section 3. During the audit, the employer's representative
shall discuss the audit with the employee and the supervisor. In
such discussions, the employee shall have the right to be
accompanied by a union representative. Upon completion of the
audit, the findings shall be discussed with the employee and the
representative.
A. Positions of the Parties
The Union contends that the intent of this proposal is to
keep the employee informed of all activities which normally
affect terms of employment.
The Agency contends that the effect of the proposal "is to
change the means and manner of the way a classification audit is
concluded" and further, that it conflicts with management's right
to assign work to employees. In support of its position, the
Agency distinguishes the Authority's decision in American
Federation of State, County and Municipal Employees, AFL - CIO,
Local 2027 and Action, Washington, D.C., 12 FLRA 643 (1983)
(Proposal 1) which found negotiable an employee's right to have a
union representative present at all meetings with management
involving classification matters, including desk
audits. The Agency contends that Action does not require 1) the
presence of the union when a supervisor meets with the
classifier, or 2) that the classifier make findings at the
completion of the audit or 3) that the classifier discuss the
matter with the employee and the union representative.
B. Analysis and Conclusions
Proposal 12 provides that during the course of a
classification audit an employee shall have the right to union
representation in discussions with the employer's representative
or the employee's supervisor. Contrary to the Agency's position,
there is nothing in this proposal which requires Union presence
when a supervisor meets with a classifier. Further, there is
nothing in this proposal which requires the classifier to make
findings at the completion of the audit. Rather, this proposal
merely provides for Union representation during the audit itself.
Further, the proposal contemplates that at some point after the
audit is completed, the "results" will be discussed with the
employee and the representative.
Thus, we find this proposal is to the same effect as
Proposal 1 found negotiable in Action. Proposal 1 in that case
provided for an employee's right to union representation in
meetings with management involving classification including desk
audits. Proposal 1 was found to be negotiable because it did not
relate to the classification of any position and consequently was
not excluded from the definition of "condition of employment" by
section 7103(a)(14)(B). Similarly, insofar as this proposal
concerns union representation during desk audits, it is also not
excluded from the obligation to bargain by section 7103(a)(14)(B)
of the Statute.
However, the Authority consistently has held that the
management's right to assign work under section 7106(a)(2)(B)
encompasses the right to assign specific duties to particular
individuals, including management officials, and that provisions
which interfere with this right are nonnegotiable. See, for
example, National Association of Government Employees, AFL - CIO,
Local R14-87 and Department of the Army and the Air Force, Kansas
Army National Guard, 19 FLRA 381 (1985). Since this proposal
requires "the supervisor" to perform certain functions, it
interferes with management's right under section 7106(a)(2)(B) to
assign what work will be performed and by whom. U.S. Army Missile
Command, 27 FLRA 69 (1987) (Provision 6). This defect
is easily cured by eliminating the reference to the supervisor.
See U.S. Army Missile Command at 81.
In summary, we find that to the extent that this proposal
provides for Union representation during desk audits, it is
negotiable. However, insofar as this proposal requires a specific
individual to perform work, that is, the supervisor, it violates
management's right under section 7106(a)(2)(B) to assign work.
XIV. Proposal 13
Article XX - Merit System - Promotion and Detail
Career ladder promotions: Employees within a career ladder
who have performed satisfactorily (PIPR level III or better) will
automatically be promoted to the next step of that ladder as soon
as they have met time-in grade requirements.
A. Positions of the Parties
The Union argues that this proposal does not interfere with
management's right to select and assign personnel. Rather, the
Union contends that a career ladder promotion is a ministerial
act implementing an earlier decision to place the employee in a
career ladder position with the intention of preparing the
employee for successful noncompetitive promotions. The Agency
contends that the Union's proposal conflicts with portions of the
Federal Personnel Manual (FPM) governing career ladder
promotions.
B. Analysis and Conclusion
The first FPM provision cited by the Agency as a bar to the
negotiation of this proposal, specifically, FPM Chapter 335,
subchapter 4-2, was superseded in 1978 when a revised Chapter 335
on merit promotion was issued. See FPM letter 335-12, Dec. 29,
1978. The current FPM Chapter 335 no longer contains the
requirements set out in the superseded section.
The second FPM provision cited by the Agency, namely, FPM
Chapter 335, subchapter 1-4 (b)(2), also is not contained in the
current FPM Chapter 335. Rather, as noted by the Agency, the
language relied upon appears only in a proposed revision to
Chapter 335.
Under the current FPM requirements, a career ladder
promotion is merely a ministerial act implementing an agency's
earlier decision to place employees in a career ladder position
with the intention of preparing the employee for successful
noncompetitive promotions when the conditions prescribed by
agreement or regulation are met. See National Association of
Government Employees. Local R2-98 and Department of the Army,
Watervliet Arsenal, Watervliet, New York, 29 FLRA No. 103
(1987); American Federation of Government Employees, AFL - CIO,
Local 32 and Office of Personnel Management, Washington, D.C., 8
FLRA 460, 465 (1982), aff'd in part and rev'd in part as to
other matters sub nom. Local 32, AFGE v. FLRA, 728 F.2d 1526
(D.C. Cir. 1984).
Consequently, since the Agency in this case has not
established that this proposal is inconsistent with any rule,
regulation or agreement provision, we find the proposal to be
negotiable.
XV. Proposal 14
Article XX - Merit System - Promotion and Detail
Section 11(a). Details. A. Manner: In the interest of
effective employee utilization, details to positions or work
assignments requiring higher or different skills will be based
upon bona fide needs and will be consonant with the spirit and
intent of the Article, applicable regulations and the merit
system. Details may be used to meet emergencies or situations
occasioned by abnormal workload.
A. Positions of the Parties
The Union contends that the intent of this proposal is to
have positions properly classified and duties properly defined so
that employees will know what is required of them. The Agency
argues that the Union's statement of intent is inconsistent with
the express language of this proposal. The Agency further argues
that this proposal limits its ability to assign specified types
of work to bargaining unit employees to certain prescribed
circumstances, for example, limiting details to emergency
situations. In support, the Agency relies on National Federation
of Federal Employees, Local 615 and National Park Service,
Sequoia and Kings Canyon National Parks U.S. Department of
Interior, 17 FLRA 318 (1985) (Provision I), aff'd sub
nom. NFFE Local 615 v. FLRA, 801 F.2d 477 (D.C. Cir. 1986).
B. Analysis and Conclusion
Proposal 14 expressly limits details "to positions or work
assignments requiring higher or different skills ... based upon
bona fide needs and ... consonant with the spirit and intent of
the Article, applicable regulations and the merit system."
Further, Proposal 14 provides that details "may be used to meet
emergency situations occasioned by abnormal workload." In
agreement with the Agency, we find that Proposal 14 is almost
identical to subsection A of Provision I, found nonnegotiable in
National Park Service. Subsection A of Provision I expressly
limited details "to positions or work assignments requiring
higher or different skills ... based upon bona fide needs and ...
consonant with the spirit and intent of (the) Article, applicable
regulations and the merit system." Subsection A of Provision I
further provided that details "may be used to meet emergency
situations, or relocation occasioned by abnormal workload, change
in mission or organization, or absences of personnel." In finding
subsection A of Provision 1 to be inconsistent with management's
right under section 7106(a)(2)(B) to assign work, the Authority
stated that the provision expressly limited management's ability
to assign specified types of work to bargaining unit employees to
certain prescribed circumstances because employees could only be
assigned work requiring higher level or different skills in the
listed situations. The Authority also noted that subsection A of
Provision I had the effect of imposing stricter limitations on
management's ability to detail than those prescribed by FPM
Chapter 300.
Accordingly, since Proposal 14 is virtually identical to
subsection A of Provision I found nonnegotiable in National Park
Service, we find, for the reasons expressed there, that Proposal
14 is nonnegotiable.
XVI. Proposal 15
Article XX Merit System - Promotion and Detail
Section 12. Temporary Promotion: An employee temporarily
placed in a higher grade position or assigned to a group of
duties warranting a higher grade shall be temporarily promote and
shall be paid commensurate with the position or duties
from the first day of the new duties. Temporary promotions of
sixty (60) days or more will be made based on competitive
procedures. (Only the first sentence is in dispute.)
A. Positions of the Parties
The Union contends that the intent of the first sentence of
this proposal is to ensure that employees are being paid
commensurate with the duties they are required to perform.
According to the Union, the intent of the second sentence is to
provide for fair treatment of all candidates.
The Agency argues that insofar as the first sentence
requires a temporary promotion when employees are assigned to
ungraded positions it concerns classification matters. Thus, the
Agency contends that because matters related to the
classification of positions are excluded from the obligation to
bargain by section 7103(a)(14)(C) of the Statute and are excluded
from coverage in a negotiated grievance procedure by section
7121(c)(5) of the Statute, the proposal is nonnegotiable.
B. Analysis and Conclusion
The dispute between the parties concerns only the first
sentence of this proposal. This sentence would require that the
Agency "temporarily promote" employees "temporarily placed" in a
higher grade position or assigned to a group of duties warranting
a higher grade. For the reasons set forth below, we find that the
proposal is within the duty to bargain.
As correctly noted by the Agency, matters related to the
classification of positions are excluded from the obligation to
bargain by section 7103 (a)(14)(C) of the Statute. Such matters
are also excluded from coverage in a negotiated grievance
procedure by section 7121(c)(5) of the Statute. However, the
Agency has failed to support its claim that the phrase
"warranting a higher grade" in any manner concerns classification
matters. That is, the Agency has not established that this phrase
is intended to permit the Union to contest the classification of
assigned duties or to require the Agency temporarily to promote
employees to ungraded positions. Rather, we view the phrase
"warranting a higher grade" as a statement reflecting the fact
that when duties already classified at a higher grade are
assigned to an employee that employee will be "authorized" the
higher grade.
Thus, we find that the first sentence of this proposal is
identical to the first sentence of Provision 3 found to be
negotiable in National Federation of Federal Employees and
Department of the Interior, Bureau of Land Management, 29 FLRA
No. 122 (1987). The first sentence of Provision 3 in that case
also required temporary promotions for employees temporarily
placed in a higher grade position or assigned to a group of
duties "warranting a higher grade." Consequently, based on the
reasons and cases cited in Bureau of Land Management, we find
that this proposal is also within the Agency's duty to bargain.
XVII. Proposal 16
Article XXIII - Equal Employment Opportunity
Section 12. Sexual Harassment - The District acknowledges
that sexual harassment undermines the integrity of the Federal
Government and will not be tolerated. The District agrees to
conduct semi-annual (twice yearly) sessions on sexual harassment
at all-employee meetings. The District also agrees to take prompt
action to protect its employees from sexual harassment whenever a
valid complaint exists. (Only the underscored sentence is in
dispute.)
A. Positions of the Parties
The Union contends that the intent of Proposal 16 is simply
to ensure that all employees are aware of their rights under law
regarding sexual harassment, and to prevent or discontinue
violations of law wherever possible. Without specifically
referring to any particular sentences in this proposal, the
Agency's contends that, to the extent the proposal requires
management to conduct specific training sessions, it interferes
with management's rights under section 7106(a)(2)(A) and (B) to
assign employees and to assign work.
B. Analysis and Conclusion
The Agency's sole objection to this proposal concerns the
requirement set out in the second sentence that the Agency
conduct the specified training. Thus, we will address only the
second sentence in this decision. For the reasons set forth
below, we find that this sentence is nonnegotiable.
We have held that proposals requiring management to provide
formal training, or to assign employees to specific types of
training programs, are outside the duty to bargain because they
infringe on management's right to assign work under section
7106(a)(2)(B) of the Statute. American Federation of Government
Employees, AFL - CIO, Council of Prison Locals, Local 1661 and
U.S. Department of Justice, Federal Bureau of Prisons, Federal
Correctional Institution, Danbury, Connecticut, 29 FLRA 990
(1987) (Proposals 19, 20 and 21); Illinois Nurses Association and
Veterans Administration Medical Center, Hines, Illinois, 28 FLRA
212 (1987) (Proposal 9), petition for review filed sub nom.
Veterans Administration Medical Center, Hines, Illinois v. FLRA,
No. 87-1514 (D.C. Cir. Sept. 23, 1987) and Illinois Nurses
Association and Veterans Administration Medical Center, North
Chicago, Illinois, 27 FLRA 714 (1987) (Proposal 5), petition for
review filed sub nom. Veterans Administration Medical Center,
North Chicago, Illinois v. FLRA, No. 87-1405 (D.C. Cir. Aug. 17,
1987). Further, the Authority has found a proposal prescribing
the content of training is a direct interference with
management's right to assign work. American Federation of
Government Employees, Local 2094, AFL - CIO and Veterans
Administration Medical Center, New York, New York, 22 FLRA 710
(1986) (Proposal 6), petition for review filed on other grounds
sub nom. American Federation of Government Employees, Local 2094
v. FLRA, No. 86-1521 (D.C. Cir. Sept. 22, 1986).
Accordingly, based on the rationale in the cases cited
above, we find insofar as Proposal 16 requires the Agency to
provide specific training it violates management's right to
assign work and is nonnegotiable.
XVIII. Proposal 17
Article XXVIII - Training
Section 2. Training Programs - The Employer is responsible
for establishing training programs to improve employee
efficiency, to contribute to merit promotion from within the unit
whenever practicable and to assist employees hurt by a
reduction-in-force, reorganization or transfer of function to
obtain placement in another agency. In developing such programs,
the Employer agrees to consider the views of the Union through
the establishment of a Training Committee.
A. Positions of the Parties
The Union states that the intent of Proposal 17 is to
encourage training and that the suggested list of training
objectives is neither inclusive nor exclusive.
The Agency argues that Proposal 17 would require it to
establish training courses for specific objectives to be
conducted during duty time. The Agency contends further that the
Union is seeking to negotiate the substantive content of such
training. Accordingly, the Agency concludes that Proposal 17 is
nonnegotiable.
B. Analysis and Conclusions
The first sentence of this proposal requires the Agency to
establish formal training programs for employees in the areas
specified in the proposal. As we stated at Proposal 16, we have
held that proposals which require management to provide formal
training are outside the duty to bargain because they infringe on
management's right to assign work under section 7106(a)(2)(B).
Accordingly, based on the cases cited at Proposal 16, we find the
first sentence of this proposal to be outside the duty to
bargain.
The second sentence of the Proposal requires the
establishment of a training committee so that the Union's views
on training may be considered by the Agency. This sentence is to
the same effect as the proposal found to be a negotiable
procedure in American Federation of Government Employees, AFL -
CIO, Local 2761 and U.S. Department of the Army, U.S. Army
Adjutant General Publication Center, St. Louis, Missouri, 14 FLRA
438 (1984). The proposal in that case required the establishment
of a joint labor-management training committee to develop the
agency's training program. The Authority determined that the
committee in that case did not constitute a forum for negotiating
the content of the agency's training which would be inconsistent
with the right to assign work. Rather, the Authority found that
committee constituted a forum by which the union could
participate in the evaluation of training needs and the
formulation of programs to meet those needs. Thus, the Authority
concluded that the proposal did not violate the agency's right to
assign work but was within the duty to bargain. Compare
International Plate Printers, Die Stampers and Engravers Union of
North America, AFL - CIO, Local 2 and Department of the Treasury,
Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113
(1987) (provision 17 establishing a joint
labor-management Apprenticeship committee found to interfere with
management's right to assign work because it permitted the Union
to interject itself into the deliberative process by which the
agency exercises its rights to assign training and to determine
the amount and type of training necessary).
The second sentence of this proposal seeks only to establish
a forum for the Union to provide its views on training programs.
Thus, based on U.S. Army Adjuntant General Publication Center,
the second sentence is with n the duty to bargain.
XIX. Proposal 18
Article XXVIII - Training
Section 5. - On the Job Training - If an employee is
required to train a new employee, the supervisor will provide,
whenever necessary, additional help in the position to compensate
for the time spent training the employee. If an employee's work
falls behind due to training another employee, management shall
provide help, if available, to bring the work up to date and will
not hold the employee accountable for work not completed due to
the training assignment.
A. Positions of the Parties
The Union states that the intent of this proposal is "to
ensure that employees are not assigned duties which are not
achievable." The Agency contends that the proposal violates
management's rights under section 7106(a)(2)(A) and (B) of the
Statute to assign and direct employees and to assign work.
B. Analysis and Conclusion
The first sentence of this proposal provides that if a
bargaining unit employee is required to train a new employee, the
bargaining unit employee's supervisor would be obligated to
provide "additional help" to "compensate" the bargaining unit
employee for the time spent training the new employee. To the
extent that this sentence requires a specific management official
to perform certain functions, it interferes with management's
right under section 7106(a)(2)(B) to assign work. See U.S. Army
Missile Command, 27 FLRA 69 at 81.
Although we have found that such a defect could easily be
cured by eliminating the reference to a specific management
official, we do not make a similar determination here. Even if
this defect were cured, this sentence could still be interpreted
to be nonnegotiable. That is, there is nothing in the record
which indicates what supervisory actions would be necessary to
provide "additional help" to "compensate" the bargaining unit
employee for the time spent training a new employee. Thus, this
sentence could be interpreted to require a supervisor to perform
the bargaining unit employee's duties, as claimed by the Agency.
Further, this sentence could also be interpreted to require the
supervisor to reassign the bargaining unit employee's duties to
other employees. Under either interpretation, this sentence would
be nonnegotiable. See, for example, American Federation of
Government Employees, AFL - CIO Local 1815 and Army Aviation
Center, Fort Rucker, Alabama, 28 FLRA 1172 (1987) (Provisions
10-18). Consequently, we find the first sentence nonnegotiable.
The second sentence requires that in a situation where a
bargaining unit employee is required to train a new employee and
the bargaining unit employee's work falls behind as a result of
the training assignment, the Agency would be obligated to provide
help to the employee to bring the overdue work up to date. Unlike
the first sentence, the second sentence does not specify the
particular management official who would be obligated to act.
However to the extent that this sentence, like the first
sentence, contemplates the reassignment of duties from a
bargaining unit employee to other employees, it interferes with
management's right to assign work.
Further, the last clause of the second sentence provides
that employees will not be held accountable for work not
completed due to the training assignment. We find that this
clause is to the same effect as the last sentence of PSC Proposal
11 found nonnegotiable in National Treasury Employees Union,
Chapter 22 and Department of the Treasury, Internal Revenue
Service, 29 FLRA 348 (1967). The last sentence of PSC Proposal
11 provided that employees "shall not be responsible" for any
work over which they had no control due to being assigned to a
detail. We determined that by specifically providing that an
employee "shall not be responsible," the sentence insulated
employees from responsibility for their work in the described
situation and, conflicted with management's rights under section
7106(a)(2)(A) and (B) to direct employees and to assign work.
Thus, based on Internal Revenue Service and the cases
cited in that decision, we find that the last clause of the
second sentence in this proposal also violates management's
rights to direct employees and to assign work and is
nonnegotiable.
XX. Proposal 19
Article XXVIII - Training
Section 10. Special Training - Management recognizes the
benefit to both parties of having union officials and stewards
skilled in problem resolution and in applicable personnel
policies and practices. Management agrees to provide such
reasonable assistance as is requested by the Local in providing
material, training, and/or training opportunities to enhance
these skills. A reasonable amount of official time will be
allotted to permit this training. This allotment does not affect
the amount of time permitted under Article XXIV for other
training sessions.
A. Positions of the Parties
The Union contends that the intent of Proposal 19 is to
encourage training which would facilitate an efficient
"noncombatant" relationship between labor and management.
The Agency contends that the clear language of Proposal 19
is that the Union wants training in applicable personnel policies
and practices and that management will either send the Union
stewards to such training or that management will provide the
training to the Union officials and stewards. Thus, management
argues that this proposal violates management's right to assign
work and is nonnegotiable. The Agency also claims that it has no
way of knowing whether such training would be for internal Union
purposes in violation of section 7131(d).
B. Analysis and Conclusion
The language of the first two sentences of this proposal
clearly indicates, despite the meaning urged by the Union, that
the Agency would be required to provide training to union
officials and stewards on subjects to be determined by the Union.
In International Plate Printers, Die Stampers and Engravers Union
of North America, AFL - CIO, Local 2 and Department of the
Treasury, Bureau of Engraving and Printing, Washington,
D.C., 25 FLRA 113 (1987) (Proposals 17-20), we reaffirmed the
Authority's findings in National Association of Air Traffic
Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA 588 (1981)(Proposals I - III) that the
assignment of training, including decisions as to the type of
training to be assigned, and the frequency and duration of
training constitutes an exercise of management's right under
section 7106(a) (2)(B) to assign work. Accordingly, based on the
language of this proposal, which would require the Agency to
provide training as determined by the Union to union stewards and
officials, we find the first two sentences of this proposal to be
nonnegotiable.
The last two sentences of the proposal require a reasonable
amount of official time to be granted by the Agency for the
training required by the first two sentences. Since we have found
the first two sentences to be nonnegotiable, a requirement to
provide official time to attend such training is also
nonnegotiable.
Although we find the last two sentences in this proposal to
be nonnegotiable, we note that we recently have held in National
Treasury Employees Union and Department of the Treasury,
Financial Management Service, 29 FLRA No. 422 (1987) (Provision
6) that proposals authorizing official time for employees to
attend training that was related to labor-management
representational activities within the meaning of section 7131(d)
of the Statute were negotiable. Further, the Authority has found
that proposals which would grant official time to union
representatives to attend union-sponsored training which was of
mutual benefit were negotiable. American Federation of Government
Employees, AFL - CIO 'Local 1733 and Department of the Interior,
National Park Service, National Capital Region, Washington, D.C.,
5 FLRA 295 (1981) and cases cited in that decision.
XX. Proposal 20
Article XXIX - Travel/Per Diem
"5. Employees shall not be required to use privately owned
vehicle for government business."
A. Positions of the Parties
The Union contends that its intent is to protect employees
from unreasonable management requests. The Union argues
that if management has the right to order an employee to use
his/her own vehicle for government business, management could
require an employee to own a vehicle.
The Agency contends that the effect of this proposal would
be to prevent it from designing and advertising a position to
specifically include the requirement that an employee have an
automobile to be used for work. The Agency claims that such
restriction conflicts with its rights under section 7106(a)(2)(A)
and (B) to assign and direct employees, and to assign work. The
Agency also claims that such a restriction conflicts with its
right under section 7106(b)(1) to determine the methods and means
of performing its work and with its right under travel
regulations to determine the appropriate means of
transportation.
B. Analysis and Conclusion
We find that the Agency has provided no support for its
contentions that this proposal would prevent it from assigning
duties which involve travel or from directing employees to
perform those duties. Thus, we reject the Agency's claims that
this proposal violates its rights under section 7106(a)(2)(A) and
(B) to assign and direct employees and to assign work.
Nevertheless, we find this proposal to be nonnegotiable. The
choice of the particular mode of transportation to be used for
accomplishing an agency's mission is a decision under section
7106(b)(1) as to the "means" to be used for the accomplishment of
its work, that is, the instrumentalities, agents, tools, devices
used to accomplish the agency's work. See National Treasury
Employees Union, Chapter 26 and Internal Revenue Service, Atlanta
District, 22 FLRA 314 (1986) (Proposal 2); American Federation
of Government Employees, AFL - CIO, Local 3804 and Federal
Deposit Insurance Corporation, Madison Region, 21 FLRA 870
(1986) (Proposal 10). Consequently, this proposal expressly
prevents the Agency from choosing the particular mode of
transportation to be used to accomplish its work. Based on the
above decisions, this proposal is subject to bargaining only at
the Agency's election under section 7106(b)(1). Since the Agency
has elected not to bargain on this proposal it is outside the
duty to bargain. In view of our decision on this proposal it is
unnecessary to address the Agency's additional claim that the
proposal is inconsistent with an unspecified travel regulation.
XXI. Order
The Petition for review is dismissed insofar as it relates
to: Proposal 1; Proposal 4, the last sentence of section (a), the
phrase "direct corrective action" in section (c) and section (g);
Proposals 6 through 11; Proposal 12 to the extent that it
requires the supervisor to perform duties; Proposals 14 and 16;
the first sentence of Proposal 17; and Proposals 18 through 20.
The Agency shall, upon request or as otherwise agreed to by the
parties, bargain concerning: Proposals 2 and 3; Proposal 4 except
for the last sentence of section (a), the phrase "direct
corrective action" in section (c) and section (g); Proposal 5;
Proposal 12 to the extent that it provides for Union
representation during desk audits; Proposals 13 and 15; and the
second sentence of Proposal 17. 3
Issued, Washington, D.C., December 31, 1987.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun on Proposal 2
Proposal 2 requires the Agency to reassign unit employees
who participate in arbitration hearings to the day shift for the
week(s) during which the hearings take place. I agree with Member
McKee that the proposal is negotiable.
In previous cases, I found that proposals requiring the
assignment of particular employees to particular shifts
werenonnegotiable. In New York State Nurses Association and
Veterans Administration Bronx Medical Center, 30 FLRA No. 89
(1987), for example, Proposal 1 required the agency to assign the
union's chairperson and co-chairperson to the day shift. I found
that the proposal was nonnegotiable because it conflicted with
the agency's right to assign work. See also my opinions in
National Union of Hospital and Health Care Employees, District
1199 and Veterans Administration Medical Center, Dayton, Ohio, 28
FLRA 435, 486 (1987), petition for review filed sub non.
Veterans Administration Medical Center v. FLRA, No. 87-1521
(D.C. Cir. Sept. 28, 1987); National Association of Government
Employees, Local R1-109, AFL - CIO and Veterans Administration
Medical Center, Newington, Connecticut, 26 FLRA 532, 540 (1987);
International Plate Printers, Die Stampers and Engravers Union of
North America, AFL - CIO, Local 2 and Department of the Treasury,
Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113,
153 (1987).
Proposal 2 in this case is different from the previous
proposals I found to be nonnegotiable, however. First, the
proposals applies only to employees who are involved in
arbitration hearings. As noted by Member McKee, it is unlikely
that the same employees would be involved in all arbitrations.
Second, the shift changes required by Proposal 2 are temporary.
Unlike previous cases, where the proposals in dispute required
permanent shift changes, under this proposal employees are
reassigned to the day shift only for the week(s) of arbitration
hearings in which they participate.
Finally, in my opinion the proposal facilitates the
participation of unit employees in arbitration hearings and
thereby furthers an important goal: the resolution of grievances
through the Congressionally mandated negotiated grievance and
arbitration procedure. See National Federation of Federal
Employees, Local 29 and Department of Defense, HQ U.S. Military
Entrance Processing Command, 29 FLRA 726, 728 (1987),
where the Authority held that the requirement in section 7121 of
the Statute that the parties negotiate over grievance procedures
"carves out an exception to management's right to assign work
under section 7106(a)(2)(B)."
Section 7121(b)(3)(C) of the Statute provides that
negotiated grievance procedures shall include provisions for
binding arbitration. Proposal 2 is part of the parties' agreement
concerning the scheduling of arbitration hearings. The proposal
itself concerns the manner in which unit employees will
participate in those hearings. Any conflict with the Agency's
right to assign work under section 7106, therefore, results from
negotiations over procedures for arbitration hearings which are
required under section 7121. As in U.S. Military Entrance
Processing Command, I find that section 7106 must yield here. It
is my view that any conflict with the Agency's right to assign
work resulting from Proposal 2 is strongly outweighed by the
Congressional policy concerning the negotiation of procedures for
the resolution of grievances.
In these circumstances, I agree with my colleague that the
proposal is negotiable.
Issued, Washington, D.C., December 31, 1987.
Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Member McKee on Proposal 2
The only portion of Proposal 2 disputed by the Agency
concerns the possibility of assigning affected employees to the
day shift should they be involved in an arbitration proceeding.
At present only one shift exists. In my view, the purpose of the
shift change would be to ensure the availability of those
employees needed for a hearing. Moreover, the change in shift
assignment would be of a temporary nature. Thus, the impact on
the Agency's work procedures would be minimal. The proposal does
not require the Agency to assign affected employees to different
work assignments, but merely to a different shift for the limited
purpose of appearing at the arbitration proceeding.
Further, the proposal would not permanently benefit any
specific employees, both because of its temporary nature and
because it is unlikely that the same employees would always be
affected. Moreover, nothing in the proposal precludes the
Agency's right to deny the temporary shift assignment based on
its work needs. Therefore, I conclude that Proposal 2 does not
involve the Agency's right to assign employees within the meaning
of section 7106(a)(2)(A) of the Statute. Thus, Proposal 2 is
within the duty to bargain.
Issued, Washington, D.C., December 31, 1987.
Jean McKee Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1 Our separate concurring opinions on Proposal 2
immediately follow this decision.
Footnote 2 Three additional proposals were included in this
appeal. However, the Agency's claims that the parties reached
agreement on these three proposals. Statement of Position at
22-24. The Union did not file a Reply Brief and, therefore, did
not controvert the Agency's statement. Thus, we find that the
dispute as to these three proposals is moot and consequently, we
will not address them further.
Footnote 3 In finding these proposals and parts of proposals
to be negotiable, we make no judgment as to their respective
merits